Animal cruelty such as dog fighting and cockfighting are felonies in most states, but a federal law enacted 11 years ago extended the prohibition to videos of the heinous conduct. The U.S. Supreme Court has correctly struck down the ban to protect the doctrine of freedom of speech.

Hawaii is lagging behind most states in preventing cruelty to animals. Only two years ago did it become the 43rd state to make cruelty to animals a felony offense and even then it exempted cockfighting, lagging with only 15 states where it is a misdemeanor. Still, the Lingle administration was among 26 states that supported the government's case banning videos of animal cruelty.

The videos that prompted the congressional legislation in 1999 were particularly depraved. The “;crush videos”; portrayed dominatrix women stepping on and killing small animals; the videos created an underground market estimated at a million dollars.

Other categories of speech declared unprotected by the First Amendment have included “;fighting words”; in 1942, threats in 1969, inciting illegal activity in 1969, obscenity in 1973 and child pornography in 1982. In signing the bill banning animal-cruelty videos, President Bill Clinton expressed reservations about its breadth and instructed the U.S. Justice Department to limit prosecutions to “;wanton cruelty to animals designed to appeal to a prurient interest in sex.”;

The case before the high court was anything but that. Film producer Robert J. Stevens instead sold videotapes of hunting trips showing pit bulls catching wild boars, a dog fight in Japan, where it is legal, and dog fights filmed in the United States in the 1960s and 1970s, when it was legal. He said he did not intend to promote dog fighting but to show the relative aggression of pit bulls.

Writing for the 8-1 majority, Chief Justice John G. Roberts Jr. asserted, “;The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”; He added that the court has no “;freewheeling authority to declare new categories of speech outside of the First Amendment.”;

Included in the high court's docket in the current session are First Amendment cases about anonymous speech, the right of free association and a federal law that limits speech supporting terrorist organizations.

In those legal battles, the court should adhere to Roberts' standard that a “;special case,”; such as child pornography, must include a market that is “;intrinsically related to the underlying abuse.”; Where that cannot be determined, the court should rule in favor of free speech, as it did in the matter of animal cruelty videos.